MPs, not Euro-judges, should make our laws

A court ruling on life sentences last week was a welcome reaffirmation of parliamentary sovereignty.

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26 February 2014

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Last week, the Court of Appeal in London ruled that UK courts can continue imposing whole-life prison sentences for the most ‘heinous’ crimes. The court upheld the 40-year minimum sentence given to Ian McLoughlin at the Old Bailey last October for the murder of Graham Buck. This decision marks an important victory for parliamentary sovereignty and democracy. It’s also a warning to the unelected judges at the European Court of Human Rights in Strasbourg, making it clear that further attempts to usurp parliament’s lawmaking powers will be met with stern resistance.

Calls to clarify the legality of whole-life sentences came after the 2012 landmark case of Vinter v UK, where the European Court of Human Rights ruled that UK law’s provision for the early release of whole-life prisoners didn’t comply with Article 3 of the European Convention on Human Rights, which prohibits ‘inhuman or degrading treatment or punishment’.

Under domestic law, a prisoner serving a whole-life sentence can have his or her sentence reduced if the justice secretary, presently Chris Grayling, is satisfied that there are exceptional circumstances that justify release on compassionate grounds. The existing guidance, set out in a lengthy document known as the ‘lifer manual’, specifies that the prisoner should be suffering from a terminal illness and expecting death shortly.

Strasbourg wasn’t satisfied with this. It ruled that, in order to be human-rights compatible, whole-life orders had to include a regime of reducibility. In other words, they had to include a possibility or hope of release. This would mean an automatic right for whole-life prisoners to have their sentence reviewed every 25 years. Strasbourg ruled that UK law failed to meet this threshold because it didn’t clearly provide for reducibility.

The five-judge Court of Appeal in the McLoughlin case, led by Lord Thomas, the lord chief justice, was defiant in its response. The court explained, in robust language, that the regime for reducibility established by parliament was perfectly compatible with Article 3. The European Court was simply wrong and hadn’t understood English law. Lord Thomas explained that the lifer manual couldn’t restrict the justice secretary’s power and that he’d consider cases on an individual basis, taking into account compatibility with human rights. This meant that the present regime did offer prisoners the possibility or hope of release.

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Of course, being ordered to spend your whole life in prison is an ‘inhumane’ punishment. The fact that the courts can impose whole-life orders reflects the view that some criminals are beyond the very human capacity for redemption. The introduction of a more substantive right to review would be a welcome amendment to the current regime, if only to introduce a symbolic recognition that even the most egregious offenders may be capable of change.

But from a sovereignty point of view, the ruling of the Court of Appeal should be welcomed. The unelected and unaccountable judges of Strasbourg, whose rulings can’t be challenged, have indulged in too many controversial decisions aimed at establishing a pan-European justice system. Their creative interpretation of the European Convention on Human Rights has resulted in far-reaching rulings that have usurped the democratic lawmaking powers of individual states – going far beyond the parameters envisaged by the drafters of the convention. This poses a real danger to parliamentary sovereignty – the most fundamental principle of our unwritten constitution.

Of course, the UK courts have previously disagreed with Strasbourg. But the robust and unapologetic language used in this case may signal the beginning of a long-awaited judicial fightback against Strasbourg’s ever-expanding encroachment into UK law. Last June, the president of the European Court of Human Rights, Judge Dean Spielmann, threatened to kick the UK out of the European Union if it didn’t adhere to human-rights law. It seems the Court of Appeal were right to call his bluff.

Asha R Shah is a writer and paralegal working in financial regulation.